Two more felony gambling cases will go to court later this year in Linn County, where the local prosecutor has taken one of the most aggressive stances in the state against video machines offering payoffs of hundreds or thousands of dollars.
Following preliminary hearings Tuesday, Associate Circuit Judge Tracy Mason-White ordered that Torch Electronics of Wildwood and Capital Vending of Columbia face arraignment April 6 on charges of promoting gambling.
It is the third felony case where Prosecuting Attorney Shiante McMahon has shown probable cause sufficient to put the case before a jury.
McMahon said she’s pleased with the findings.
“I now have two different judges who have found probable cause in three different cases,” she said. “I will be interested to see how this proceeds in circuit court.”
The three cases are among seven pending felony gambling charges targeting machines that have proliferated in convenience stores and other locations around Missouri in the past two years. There are also 19 pending misdemeanor gambling cases.
But there could be many more.
During 2019 and 2020, investigators from the Missouri State Highway Patrol sent prosecutors 190 cases requesting charges for illegal gambling.
Ten of those cases, with the probable cause statements that must accompany every criminal complaint, were sent to Boone County Prosecuting Attorney Dan Knight. No charges have been filed.
In law enforcement terms, the probable cause statement is a request from investigators for prosecutors to file charges.
“There is a conflicted opinion statewide about these machines, as far as it goes down with local prosecutors,” said Justin Owens, an assistant prosecutor in Knight’s office. “The companies that make these machines are very adamant that they are not in the purview of the Missouri State Highway Patrol and they are not gambling machines.”
Most, if not all, of the probable cause statements delivered to the Boone County prosecutor from patrol investigators requested misdemeanor charges, Owens said. That means any that allege crimes that occurred more than a year ago cannot be charged now because the statute of limitations has expired.
Many prosecutors are waiting for a case that determines with certainty whether the machines are legal or not, Owens said.
“That is still not a bright line rule from an appellate authority,” he said.
The patrol cannot supply data indicating the counties where cases have or have not been filed, said Capt. John Hotz, spokesman for the patrol.
The number of charges resulting from the 190 probable cause statements “is a fairly low number,” said Steve Sokoloff, general counsel in the Office of Prosecution Services.
There are several reasons prosecutors may have declined to file the cases, Sokoloff said. One was the COVID-19 pandemic, which he said limited access to the courts for many months and led prosecutors to focus on violent offenses.
Some of the cases could involve ongoing activities or felony charges, which can be filed up to three years after an alleged crime occurred.
“I know there are ongoing investigations around the state,” Sokoloff said, “and you will probably see more cases filed.”
Greene County has not received any cases from the patrol, Prosecuting Attorney Dan Patterson said. But he can understand why some prosecutors have declined to prosecute many of the cases brought to them in the past year, including gambling cases.
“During the pandemic, most of us, due to the volume in our office, have had to focus and prioritize cases that were threats to public safety,” said Patterson, who is also president of the Missouri Association of Prosecuting Attorneys.
Many prosecutors are were also waiting for the results of the first case testing the legality of the video machines.
A Kansas-based company, Integrity Vending, was found guilty of promoting illegal gambling in September in a Platte County trial. That case was originally filed in March 2019.
It was widely expected Integrity Vending would appeal a conviction, Patterson said. That would have created a precedent that would have settled important technical issues.
But Integrity never appealed. It paid a fine and removed its machines instead.
“Unfortunately,” Sokoloff said, “we don’t have a court of appeals decision on that case or the evidence in that case.”
The patrol has two investigators from the Drug and Crime Control Division permanently assigned to investigate complaints of illegal gambling, and others who are assigned as needed.
That need has definitely increased.
The 38 complaints about illegal gambling in 2018 grew to 242 in 2019 and 207 in 2020, figures supplied by the patrol show. The result was 109 probable cause statements sent to prosecutors in 2019 and 81 in 2020.
Torch Electronics, a company that has made major campaign donations in Missouri and hired well-connected lobbyists to promote its business, is trying to block those investigations with a lawsuit filed Feb. 10 in Cole County.
Torch and Midwest Petroleum, a company with 44 convenience stores, allege that the patrol, and local law enforcement working with the patrol, has engaged in a campaign of “harassment and intimidation” against the companies.
But local prosecutors and other law enforcement officials say they need more, not less, help with their investigations and prosecutions. Police agencies cited the need to focus limited personnel on immediate needs, including road patrols and emergency calls.
Barry County Sheriff Danny Boyd said most shifts for his department include three road deputies patrolling the 791-square-mile county, consuming much of the payroll of his 21-deputy agency.
“Nobody has notified us they are being harassed,” Boyd said in response to the Cole County lawsuit, which names his county as one with zealous enforcement. “That is news to me.”
As a detective for the Cassville Police Department and now sheriff, Boyd said all illegal gambling cases that came to his attention have been referred to the patrol.
“We don’t have the training to go in and do it,” Boyd said. “If we started an investigation, we wouldn’t even know how to start on that.”
Boyd’s former boss, Cassville Police Chief Dana Kammerlohr, said her department has seven officers on payroll out of an authorized force of 12.
She said she doesn’t know enough about the machines to decide if they are illegal.
Missouri lawmakers have bills pending that would tighten state laws against illegal gambling and require any machine that pays out cash to winners to be certified by either the Missouri Lottery Commission or the Missouri Gaming Commission.
“There’s always been a little bit of confusion about whether these things are illegal or not,” Sokoloff said.
The Office of Prosecution Services has stepped up its training efforts to help local prosecutors, he said. That includes formal training sessions as well as sharing case law, how to respond to defense motions and other information sharing, he said.
“The (prosecutors’) association and the office has always taken the view that it is an important issue because these things are not legal and they frequently take money from people who can ill afford to lose it,” Sokoloff said.
One of the issues with state involvement in enforcement is the lack of jurisdiction.
The General Assembly added $150,000 to Attorney General Eric Schmitt’s office budget this year to pay for attorneys dedicated to gambling prosecutions. But the money has not been spent.
The money is included in this year’s budget recommendation from Gov. Mike Parson as a permanent increase for the office, but budget documents are silent on how the office should use the extra funds.
And the attorney general’s office has no power to initiate criminal charges in most cases. Senate Appropriations Committee Chairman Dan Hegeman, R-Cosby, said he was pleased when Schmitt said his office would defend the state in the Torch Electronics lawsuit.
Anything Schmitt’s office can do to encourage prosecutions would also be helpful, Hegeman said.
“When the people in the state of Missouri voted for these gambling machines, they wanted money for education and veterans,” Hegeman said. “That is all being denied to the state of Missouri with these end runs around constitutional gaming in Missouri. They are stealing money from the kids.”
The Missouri Gaming Commission has no direct jurisdiction over gambling machines outside licensed casinos but has provided technical support for prosecutors. In Linn County, the only witness in the three preliminary hearings was an electronic game specialist employed by the commission.
“With our expertise, when called upon, we can provide technical advice and determine if a machine by their standards is legal or not,” said Mike Leara, chairman of the Missouri Gaming Commission.
If the commission is given an expanded enforcement role, he said, it may require additional employees.
The knowledge and statewide reach of both the patrol and the gaming commission make those agencies the best equipped to enforce gambling laws, Patterson said.
“Those are things that are important rather than just leaving these investigations to local law enforcement,” he said. “The highway patrol and the gaming commission, those are the folks with the information and the expertise.”